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Laxman Gupta vs State on 15 February, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 886/2018
Reserved on : 17.01.2019
Date of Decision: 15.02.2019
IN THE MATTER OF:
LAXMAN GUPTA ….. Appellant
Through : Ms.Rakhi Dubey, Advocate.
versus
STATE ….. Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J.

1. The present appeal arises out of the judgment on the conviction
dated 07.04.2018 and order on sentence dated 27.04.2018 in Sessions Case
No. 45056/2015 arising out of FIR No.288/2015, under Sections
302/
498A IPC, P.S. Khajuri Khas.

2. The appellant has been convicted under Section 302 and has been
sentenced to undergo rigorous imprisonment for life and to pay fine of
Rs.5000/- in default of which he has been directed to undergo R.I. for one
year.

3. So far as Section 498A IPC is concerned, the appellant was
acquitted. Besides
Section 302 IPC, an alternate charge under Section
304B IPC was also framed against the appellant, however, in view of the
appellant being held guilty under
Section 302 IPC, the offence under
Section 304 B IPC was held to be not made out.

CRL.A. 886/2018 Page 1 of 11

4. The offence saw the light of the day on 18.03.2015 when the
appellant, on his own, went to P.S. Khajuri Khas and confessed to having
killed his wife Suman Devi, on 16.03.2015. While making the said
confession, the appellant also stated that for the last 1 ½ months he had
been residing with his wife in a rented room and on 16.03.2015, a Monday
morning, there was a quarrel between him and his wife; at about 11:30 am,
he threw her wife on the bed and killed her by strangulation. The appellant
also stated that he had written about this act with a pencil on the wall of
the tenanted room. Thereafter, he had locked the room from outside and
roamed around for 2-3 days. After he realized his mistake, he had come to
the police station. He stated that he had the keys of the room and could get
the body of his wife recovered from there. This information recorded on
18.03.2015 as DD 10-A (Ex.PW-7/A), was signed by the appellant.

5. SI Kuldeep Singh (PW-23), Ct. Thane Ram Meena (PW-14) along
with Inspector Yogendra Khukhar (PW-24) reached the spot, the Crime
Team was also called. The appellant opened the room with the key which
he was carrying. The dead body of his wife Suman Devi was found lying
on a mattress on the floor. The police team also noticed a message written
on the wall of the room which reads as under :-

“Commissioner Sahab is aurat ne aur iske pariwar walo ne
mera jeena haram kar rakha hai yeh aurat aur iska pariwar mere
se kehte hai ki ya to tum hume 80 lakh rupay do nahi to hum tum par
dahej ka aarop laga denge sir ji iske liye maine apne pariwar se alag
raha fir bhi isne meri har jagah meri beijjati ki isko maine sub kuch
diya jab bhi mujh se ladai karti thi jab bhi mujh se kehti thi ki tu mere
gaon chal tuje to kalmia aam ki tarah katwa dungi”.

6. The spot was photographed as well as videographed and the FIR
was registered. During the inquest proceedings, statement of Arvind
Kumar, brother of the deceased (PW-10) was recorded by the SDM. He

CRL.A. 886/2018 Page 2 of 11
stated that the appellant’s brother, namely Pawan Kumar Lal had
threatened and demanded dowry of Rs.7-8 lakhs from him to repay the
loan amount which the appellant had borrowed for running a shop. He also
stated that 2-3 months prior to the death of his sister, the appellant had
visited his house along with his wife and demanded Rs. 5,00,000/- from
the father of the deceased to repay the borrowed amount. The witness also
stated that his father had asked the appellant to stay with his wife at her
parental home. However, the said offer was refused by the appellant and
later, his father was informed by Suman Devi that she was beaten by the
appellant for not bringing cash of Rs. 5,00,000/- demanded by him. On the
above statement,
Section 304B/498A/34 IPC were also added in the FIR.
During the investigation, the handwriting sample of the appellant was
taken and sent to the FSL.

7. After the investigation, the charge sheet was filed and charges were
framed against the appellant on 24.08.2015 under
Section 302/304B/498A
IPC. A total of 25 witnesses were examined including the material
witnesses, namely, Arvind Kumar, brother of the deceased as PW-10;
Narender Kumar, uncle of the deceased as PW-17; Chander Pal, tenant in
the same house, as PW-2; Pawan Kumar, tenant as PW-3; Ramkesh,
tenant, as PW-4; Ramjeet, tenant, as PW-6; Rakesh Sharma, SDM
appeared as PW-5 to prove the inquest proceedings (PW-5/A). The post-
mortem report (PW-16/A) was proved by Dr. V. J. Singh, PW-16. The
other witnesses were essentially witnesses relating to arrest, seizure and
other investigations. No witness was examined by the appellant in his
defence.

FSL Reports:

CRL.A. 886/2018 Page 3 of 11

8. The writing on the wall allegedly written by the appellant was
compared with the sample handwriting of the appellant and as per the FSL
report, PW-19/A, it was opined by Ajit Singh (PW-19) that the same was
written by the appellant.

The DNA Analysis Report (PW-22/A) was proved by Sunita Gupta.
As per the said report, the blood on the clothes of the deceased was found
matching with the blood on the pillow.

Postmortem Report

9. The postmortem report (Ex.PW-16/A) was proved by Dr.V.J. Singh,
and the cause of death was mentioned as “Asphyxia as a result of ante
mortem manual strangulation”. The post mortem was conducted on
22.03.2015 and the time since death was opined to be about one week prior
to her death. The following injuries were noted on the body of the
deceased:

1. ‘Reddish abrasion of size 0.5 x 0.5 cm present over left side
neck, 1.5 cm from midline and 6 cm below chin;

2. Reddish abrasion of size 0.5 x 1.5 cm present over left side neck,
1.5 cm lateral to injury No.1;

3. Reddish abrasion of size 0.5 cm x 1.4 cm present over left side
neck, 0.2 cm lateral to injury No.2;

4. Curvilinear reddish abrasion of size 1.2 x 0.1 cm present over
left side neck, 6 cm from midline, 3 cm below angle of mandible
and 1 cm lateral to injury No.3;

5. Curvilinear reddish abrasion of size 0.8 cm x 0.1 cm present
over left side neck, 6.5 cm from midline and 2 cm below angle
of mandible;

CRL.A. 886/2018 Page 4 of 11

6. Curvilinear reddish abrasion of size 1.0 x 0.3 cm present over
right side neck, 6 cm from midline and 3 cm below angle of
mandible.’

10. Arguments were heard from both the sides. Ms. Rakhi Dubey,
learned counsel for the appellant argued that the ingredients of
Section 302
IPC are not fulfilled. She urged that the necessary ingredient of intention
is lacking, and even, on a demurer, if the prosecution case is accepted, the
allegations make out a case of
Section 304 Part II IPC. On the other hand,
Ms. Aashaa Tiwari, the learned APP has supported the impugned
judgment.

MATERIAL WITNESSES:

11. Arvind Kumar (PW-10) has deposed that his sister was married to
the appellant on 08.06.2011; she was living happily at her in-laws’ house;
after two years of the marriage, the appellant’s elder brother, Pawan had
demanded Rs.7-8 lakhs from him for repayment of a loan which had been
taken by the appellant from Pawan. The said witness further deposed that
2-3 months prior to the death of his sister, the appellant had visited his
house and demanded Rs.5,00,000/- from his father to repay the borrowed
amount. His father had showed inability to pay the said amount. The
appellant also refused the offer to live with his in-laws. The appellant used
to beat Suman for not bringing the demanded amount of Rs.5,00,000/-. As
per this witness, even two months prior to her death, Suman had informed
him and his parents that the appellant and his brother (Pawan) had beaten
her for not bringing the dowry amount. The said matter was compromised
between his sister and the appellant. PW-10 proved his statement (Ex.PW-
5/A) made before the SDM. During the cross-examination, he denied the
suggestion that no money had been demanded by the appellant. He

CRL.A. 886/2018 Page 5 of 11
reiterated that a compromise was arrived at between the appellant and his
sister. He further admitted that he had seen his sister quarreling with the
appellant but stated that he did not know the reason for the same. He denied
the suggestion that her sister was mentally retarded or that she had
consumed some medicines prior to her death.

12. Narender Kumar, uncle of the deceased was examined as PW-17.
He deposed that the appellant had demanded dowry from them and used
to harass and assault Suman Devi. In the cross examination, he denied the
suggestion that Suman Devi was mentally retarded. He denied having any
knowledge regarding the treatment of Suman Devi at IHBAS for any kind
of ailment.

13. Bhagat Singh, landlord of the appellant was examined as PW-1. He
deposed that he had let out one room on the first floor of his house to the
appellant, 20-25 days prior to 18.03.2015. He stated that the appellant was
living with his wife, Suman Devi and that they both used to quarrel
frequently for which reason, he had asked them to vacate the room. He
further deposed that on 16.03.2015, at about 11-12 noon, he was present
in his shop on the ground floor, when he saw the appellant coming down
stairs, the witness asked him if he had arranged another room on which the
appellant had replied that he would vacate the tenanted room on the same
day. PW-1 further deposed that on 18.03.2015, the appellant came with
the police at the rented room and after taking out the key from his trouser,
he had opened the lock of the said room. The dead body of the appellant’s
wife, Suman Devi was found on the bed sheet spread on the floor of the
room. He had also noticed scratch mark on her neck. The witness also saw
a message written on the wall of the room with a pencil addressed to the
Commissioner to the effect that the appellant’s wife and her family

CRL.A. 886/2018 Page 6 of 11
members had made the appellant’s life miserable and they were asking
him to give them Rs. 80,00,000/- failing which they would implicate him
in a dowry case and the appellant should go with her to her village where
she would get him killed like a mango sapling. The said witness also
proved the 16 photographs which were taken of the spot and of the
message written on the wall. During the cross-examination, the witness
had stated that he personally heard the voices of the appellant and his wife
during the quarrels. He stated that the wife of the appellant used to speak
and he never heard the appellant responding to his wife and on enquiring
from the appellant about the reason for the frequent quarrels, appellant had
replied that his wife was sick.

14. Chander Pal (PW-2), Pawan Kumar (PW-3), Ramkesh (PW-4),
Ramjeet (PW-6), tenants in the same house were also examined. PW-2
stated that the appellant and his wife used to quarrel frequently. During the
cross-examination, he stated that the appellant’s wife might have been
suffering from some mental problem and she used to quarrel with
everyone. He stated that during the quarrel, mostly the appellant’s wife
used to speak. PW-2 also stated that room of the appellant was locked from
16.03.2015 to 18.03.2015 and the same was opened by the appellant after
taking out the key from his pocket in the presence of the police officer. To
a similar effect are the testimonies of PW-3, PW-4 and PW-6.

15. From the evidence on record, the following circumstances stand
proved :-

i) the appellant and the deceased were living together in a rented
room.

ii) the appellant was seen going out after locking the room on
16.03.2015 at about 11:00 AM – 12 :00 Noon.

CRL.A. 886/2018 Page 7 of 11

iii) the room remained locked from 16.03.3015 to 18.03.2015.

iv) the appellant made a disclosure before the police on
18.03.2015.

v) the room was opened by the appellant on 18.03.2015 by
taking out keys from his pocket, in presence of police and other
independent witnesses.

vi) the body of Suman was found lying inside the room. A
message was also found written on the wall of the room.

vii) the death of Suman was caused by asphyxia as a result of ante
mortem manual strangulation.

16. From the above facts, it stands proved that death of Suman had
occurred in the rented room where she was living with the appellant. The
body of Suman was recovered pursuant to the disclosure statement of the
appellant. It also stands proved that after the appellant had locked the
room on 16.03.2015, it remained locked till 18.03.2015 when he opened
the same in the presence of the police and other independent witnesses.

17. During the trial, the appellant had not only denied the prosecution
case but had also taken a stand that he had not taken any room on rent from
PW-1 and that he was arrested from Aligarh. The said stand of the
appellant is belied by the testimonies of independent witnesses, who were
the landlord and other tenants of the house. The fact that the room was in
the possession and occupation of the appellant along with the deceased, is
not only proved by the cumulative testimonies of PW-1, PW-2, PW-3,
PW-4 and PW-6 but is also corroborated by the fact that the message which
was found scribbled on the wall of the room, was proved to have been
written by the appellant, as per the FSL report. In these circumstances, the

CRL.A. 886/2018 Page 8 of 11
burden was shifted on the appellant to explain the death of Suman in the
room which was in his possession and occupation. The appellant has failed
to discharge this burden cast upon him under
Section 106 of the Indian
Evidence Act. Reference in this regard is made to a decision of the
Supreme Court in
Trimukh Maroti Kirkan vs. State of Maharashtra
(2006) 10 SCC 681 wherein it was held as under:

“14. If an offence takes place inside the privacy of a house and in such
circumstances where the assailants have all the opportunity to plan
and commit the offence at the time and in circumstances of their
choice, it will be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted upon by the
Courts. A Judge does not preside over a criminal trial merely to see
that no innocent man is punished. A Judge also presides to see that a
guilty man does not escape. Both are public duties. ….

15. Where an offence like murder is committed in secrecy inside a
house, the initial burden to establish the case would undoubtedly be
upon the prosecution, but the nature and amount of evidence to be
led by it to establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In view of
Section
106 of the Evidence Act there will be a corresponding burden on the
inmates of the house to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot get away by simply
keeping quiet and offering no explanation on the supposed premise
that the burden to establish its case lies entirely upon the prosecution
and there is no duty at all on an accused to offer any explanation”.

(Emphasis added)

18. Thus, it stands established that the death of Suman was caused by
way of manual strangulation by the appellant in the rented room under his
possession and occupation.

19. Ms. Rakhi Dubey, Ld. Counsel for the appellant has argued, albeit
in the alternative, that the present case is covered under
Section 304 Part
II of the IPC. Examining the case from that perspective, it has emerged
from the evidence on record that the matrimonial discord between the
CRL.A. 886/2018 Page 9 of 11
appellant and the deceased had resulted in frequent quarrels which were
heard by the landlord and the neighbouring tenants. PW-1, PW-2, PW-3,
PW-4 and PW-6 have testified with respect to the frequent quarrels,
although with a caveat that they only used to hear the voice of Suman. The
contents of the message written on the wall by the appellant also points
towards the existence of strained relations between the appellant and the
deceased. A closer look at the nature of the injuries, as detailed in the post
mortem report, reveal that the injuries on the body of the deceased appear
only in the neck region, which were consequent to manual strangulation.
There are no other injury marks on any other part of the body of the
deceased.

20. From the totality of the circumstances existing on record, it can be
concluded that though the appellant had knowledge that his act was likely
to cause death, he had no intention to cause death. The appellant is thus
found guilty of committing an offence punishable under
Section 304 Part
II of the IPC. Reference in this regard is made to a decision of a co-
ordinate Bench of this Court in
Jitender Pal Singh vs. State 2016 (2) JCC
956 wherein while relying on a decision of the Supreme Court in the case
of
State of Punjab vs. Joginder Singh Anr. (2003) 12 SCC 179, the
Court came to the conclusion that the appellant therein had no intention to
kill and thus his conviction was converted from
Section 302 IPC to Section
304 Part II IPC.

21. The conviction of the appellant in the instant case under Section 302
IPC is, therefore, set aside and modified to an offence punishable under
Section 304 Part II IPC. As far as the sentence awarded to the appellant is
concerned, as per the nominal roll dated 10.01.2019, received from the jail
authorities, the appellant has already undergone a sentence for 3 years 9

CRL.A. 886/2018 Page 10 of 11
months and 22 days with a remission of two months and 25 days. The
maximum punishment provided for under
Section 304 Part II IPC is 10
years. As per the said nominal roll, the appellant is presently 44 years old.
The order on sentence records that the appellant hails from a poor
background. His conduct in jail was reported to be satisfactory. As per the
report of the Probation Officer, he had all the remorse for his guilt. It was
also recorded that the appellant does not have the financial capacity to pay
the compensation.

22. Looking at the totality of facts and circumstances of the present
case, we are of the considered view that ends of justice would be met, if
the appellant is sentenced to undergo rigorous imprisonment for seven
years and pay fine of Rs.5,000/- and in default of payment of fine, to
undergo R.I. for a further period of six months. The period of sentence
already undergone by the appellant shall be set off.

23. The appeal is disposed of in the above terms. A copy of this
judgment be sent to the concerned Jail Superintendent. The Trial Court
record be sent back forthwith along with a copy of this judgment.

(MANOJ KUMAR OHRI)
JUDGE

(HIMA KOHLI)
JUDGE
FEBRUARY 15, 2019/ j/ ‘dc’

CRL.A. 886/2018 Page 11 of 11

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